National Assembly for Wales

This is a meeting of the Constitutional and Legislative Affairs Committee, 28 January 2019. First, some introductions and housekeeping matters. In the event of a fire alarm, Members should leave the room by the marked fire exits and follow instructions from the ushers and staff. There is no test forecast today. Mobile devices are to be switched to silent. The National Assembly for Wales operates through the medium of both Welsh and English languages. Headphones are provided through which instantaneous translation may be received. For anyone hard of hearing, these may be used to amplify sound. Do not touch the buttons on the microphones as this can disable the system, and ensure that the red light is showing before speaking. Interpretation is available on channel 1, and verbatim on channel 2.

I've had apologies from Dawn Bowden today and an apology from Suzy Davies who is slightly delayed. She will be here, but I understand she's delayed.

Are there any declarations of interest?

If there are no declarations of interest, we move straight on to our evidence sessions on the Legislation (Wales) Bill. It's our fourth evidence session. I welcome the Law Society attending today, including Kay Powell from the Law Society. Do you want to introduce your colleagues?

Certainly, yes. Both my colleagues are members of the Wales committee of the Law Society: Trevor Coxon and Osian Roberts.

Thank you for that. The Interpretation Act is what the Bill is being drafted on the base of—the 1978 Act—to basically provide the basis for Welsh law, the interpretations of Welsh law. Interestingly, the whole process is also very much tied in with the issues around the accessibility of Welsh law. I'd like to start with the accessibility issue, because you do refer to that within your paper. What do you think are some of the key issues around accessibility, particularly in terms of why we need this particular legislation?

Thank you. I'll start here. I think the Law Society broadly welcomes the proposal to implement this piece of legislation. For those of us who practice in law, particularly in recent years with the divergences of Welsh legislation from English-and-Welsh legislation, it can at times be quite difficult to ascertain what law is in force and how to find that law. So, accessibility is very important to all of us, as it is to the public at large as well. My past experience—I've worked in the public sector; I've been a monitoring officer with a north Wales local authority for 15 years. When I first came here, the difference in the law between England and Wales was quite marginal, but since then the divergence has increased, as of course Wales wants to impose its identity on its own legislation. And so I think the time is ripe now to bring greater accessibility to where we can find the law.

As I say, in my particular area of operation, I particularly specialised in constitutional and administrative law, and there's been a wealth of local government law that has been brought out. I know that my colleague monitoring officers occasionally have difficulty in ascertaining what applies at any particular time and where to find that.

The commercial bodies that we subscribe to in terms of our texts are helpful, but maybe the priority isn't on Wales so much as it is in England, and therefore they don't always catch up quite as quickly. So, as I say, we are very supportive of this piece of legislation.

Can you perhaps expand upon your example? You started going into an example of the growth of Welsh law and that colleagues and so on have increasingly expressed views that there are difficulties identifying precisely what the law is in a particular area. Are there particular areas of law that are of concern to you that are emerging as areas of difficulty in terms of accessibility? Can I just say, we're talking about accessibility in terms of those who are administering the law at this stage, rather than the other aspect to it, which is access to legal representation?

Yes, indeed. I mean, the examples I would use, they will be related to my experience in local government, because I've not worked in private practice. But, for example, there have been a number of Measures—the Local Government (Wales) Measure 2009 and the Local Government (Wales) Measure 2011—and there are other pieces of legislation that have been issued. One example I would give is that the bane of any local government lawyer's life is to ascertain whether or not a particular piece of legislation is enforceable through the executive arrangements of an authority or the council. And, it can often be quite difficult to get your head around that particular conundrum. And finding the sources of the legislation merely adds to that difficulty; it increases the time that we have to apply in order to find that and can create the risk of missing something because we are looking at so many pieces of legislation.

The aim of this, obviously, is to consolidate and to codify the legislation applicable in Wales, and that, to my mind, can only be to the good of both ourselves as professionals and indeed, to the broader public.

Would you have any views as to things that Welsh Government or the Welsh Assembly could do better in terms of legislation and accessibility? I'm happy for you to go into perhaps a broader range, which is not just in terms of those administering law, but also in terms of those who seek access, as citizens, just seek to know what the law is. Are there more things that we can do, or what things would you like to see being done to improve accessibility?

Yes, I think so. I mentioned a few moments ago that we, as professionals, will resort to commercial resources. But I think if you were to ask a member of the public, they would hope that the lawmakers themselves had—if you wanted to find the law that was applicable, you would go to the lawmakers of that, hence, the National Assembly. And, maybe there could be more information that could be provided by the National Assembly, through a portal or something of that nature, that would help us to go to there, as the primary source of that initial information. I think my recollection is, at the present time, there isn't that facility that makes it easy to find such information.

Do you think that there is sufficient awareness, I suppose, within the legal profession, within the administrators of law, or even within the public, of this growing divergence of law, of the increasing amount of Welsh legislation there is and the impact it potentially has on people's lives, or aspects of their lives?

I think for the average member of the public, maybe not a huge amount, but for those of us in the profession, and, I suspect, those in business, they are aware of the differences. And certainly, I know that when I have been required to use the services of specialist advisers, sometimes, they can have difficulty in ascertaining which aspects of the law are applicable to their area of operation, particularly those who we engage with from across the border. But, I think as time has gone on, quite rightly, the pace of change has increased, and one can't expect that it will be anything more than continuing at that particular pace. Therefore, we feel that it is important that a start is made on this as soon as possible, because the longer you leave a piece of work of this nature, the more difficult it's going to be to address that in the future.

Then just one final one from me before we go to some others who have questions: do you think we are doing enough work as an Assembly in respect of the people who—citizens, basically; advice agencies—those who will be required, for example, to advise in areas of housing where there is very distinct Welsh law, and the other areas of environmental and planning areas, and so on? Do you think that the Welsh Assembly is doing enough to promote issues around the law, accessibility and the role it plays with those bodies that actually provide direct access to citizens in respect of the law?

Yes, I think the Assembly does good work in this area, but I do think there's always more that can be done. That's why I say one of the aspects I suggested was perhaps to take more control of bringing this source information together, and allowing the signposting and the guidance to take place so that people can find that more easily. One would hope that this particular Bill would help in that regard as well.

Okay, thank you for that. Dai Lloyd.

Yes, it is. I think that the proposed taxonomy is fine insofar as it goes, but we've yet to see what a code might look like, and it's difficult to be specific in relation to inputting to that until we've seen an example of what the code may look like. It is clear that, as you rightly say, the proposal is to consolidate and to codify, so it's going to have a dual purpose, but it's difficult for us to comment with any certainty on the effectiveness of that until we see what a code might look like. I think reference was made to a dummy code, but something that would—. At the moment, the taxonomy shows the areas of legislation that might be covered on a particular aspect but doesn’t go into any more detail at the present time. I think we will need to see that.

Picking up on the dummies and the possible piloting of how the codes would begin to look, we're very keen as well that we are able to engage and work very early on in the process so that it's not treated as the usual, 'It's a Bill and it'll be consulted upon.' Just tracking back to the justice stakeholders' group report in 2016, there was a recommendation that

'The Welsh Government should ensure there is a consistent and structured approach to engagement with key stakeholders involved in the administration of justice, including legal practitioners, the judiciary and the Law Commission.'

And then there was a further recommendation that

'The Welsh Government should consider establishing a Justice Stakeholder Group and bringing it together...once or twice a year for a collective review of developments.'

That's something that wasn't taken forward; I think there was some issue about whether it should be independent or should actually be, effectively, a group of the Welsh Government.

But, in the meantime, we've seen nothing that's brought people together, and it's going to be really important when the code starts being developed that you do have members of the judiciary, you have the Law Commission, who've been working very early on on many of the projects—for example, in planning—and ourselves as the representative body, and bringing practitioners to the table so that we can work together on the development of it, and not just see the almost cooked product of what's happening. 

So, that would be something that would be a specific recommendation that you would want us to consider. 

Yes, and again, from my past experience in a previous life, as it were, I'd like to compare this with a scenario where those of us who were monitoring officers in Wales used to have a very close relationship with the Government department dealing with local government law. And we would meet together as monitoring officers and representatives—your officials—would come, and we would talk over what was proposed, and we could give some practical guidance as to what the issues might be, which helped then when you were formulating your thoughts in terms of where you wanted to go. So, I can only strongly agree with what my two colleagues have said in relation to that.  

Carwyn Jones. 

Thank you, Chair. Good afternoon, everybody. A code means different things to different people. There are two options in my mind as to what a code might look like. One would be a code on the classic civil law lines of a code much like what we see in some other countries in Europe, where all the law is contained in one code. The alternative might be that all the current legislation is gathered together in a kind of catalogue, and where new legislation is introduced it is added to the catalogue in that code. Which one do you think would be the one that would be easiest to operate, one where everything is in a code—where, for example, there would be one particular aspect, say, of planning law would be found at paragraph 4.3 of the code—or a scenario where all the legislation was included in the code as a kind of catalogue? 

I think in terms of clarity and ease of finding the information, the code where everything is there in place has to be the favoured option. Having said that, one can understand that that is a slightly more difficult and, certainly, a more resource-intensive approach to take. But I think as far as we are concerned as practitioners, if we can find the source readily and haven't got to go searching elsewhere for things, that is a very beneficial approach to take. I don't know if any of either of my colleagues have got a— 

Diolch. One more question from me. One of the issues that we're wrestling with is, if we have codes, regardless of how they’re constructed—whether they are documents that contain all the law in terms of the legislation or whether they are codes in the truer sense of the word—where some legislation would be placed. Now, some of them are easy enough. Any planning legislation would go into the planning code. Any health and social services legislation would go into a health and social services code. But, of course, then we have the Well-being of Future Generations (Wales) Act 2015, which doesn’t fit in one particular code. Arguably, this legislation, this Bill, doesn’t fit into any particular code. Do you have any suggestions as to how we might resolve that? Whether there would need to be—. Whether legislation would be—legislation like the well-being of future generations Act—would be assigned to a particular code, but with signposting from that code elsewhere, or whether that legislation would appear in more than one code, so that you wouldn’t have exclusivity. So, for example, the well-being of future generations Act might appear in the environmental—. Well, it would probably go everywhere, actually—every single code. So, what do you think is the best approach—assigning a code to a piece of legislation or, where that legislation cuts across so many codes, inserting it into each code?

Yes, I mean, that’s quite a difficult conundrum, to be honest, to rationalise. I can see there are arguments for both ways of dealing with that. I think if something like the well-being legislation was to be referred to in each of the codes, it’s possible that could become somewhat confusing, and so, perhaps I—and this is from a personal perspective now—would err on the side of allocating it somewhere and ensuring that everybody realised that it was allocated, with links through to the other codes as and when they apply. But, you know, there are a number of such pieces of legislation—social well-being as well—that have impact beyond just their own location. So, I suppose I would perhaps err on the side of deciding where it is to reside and then putting the links through to the others.

Also, one more—I beg your pardon, Chair. I suppose the difficulty is this, isn’t it? One neat solution might be that, when legislation is drafted, a header could be put in the legislation saying, ‘This legislation will be inserted into the environmental code’, shall we say, which would seem a very neat way of doing it. But perhaps the difficulty is that if we’re talking about codes being the first point of access for legislation—. So, in order to find out whether a particular piece of legislation exists, you look at the code. Of course, with that suggestion—and I'm not suggesting I know what the answer is—you need to know that the legislation exists first, before looking at the code, so it's the other way around. It is something that we need to resolve, but it's tricky.

It is, and I imagine that, eventually, you'd take a pragmatic solution, and provided that we all understand that's what the solution is, then I think it will still be better than what we have at the present time.

I suppose part of the answer is, until you start doing it in practice, the degree of cross-referencing or identification with code becomes a bit clearer when you actually do it practically. The Counsel General has said of course that he doesn't intend to review or to wholesale codify the common law, and, of course, we have a mixed system of common law and statutory law. Does that cause you any concerns or do you think that is the prudent way to proceed? What specifically are your views on that approach?

Thank you very much. Sorry—Carwyn, I beg your pardon.

Yes, one of the issues I raised last week is: what do we define the common law as being, really? We often describe the system as being a common law system, but when you look at the common law itself, actually in many areas it barely exists any more because almost everything is statute. I can understand what you're saying. I'm not disagreeing with what you're saying in terms of not trying to codify common law, but where would we find common law to codify, really, to any great extent?

Thanks for that. We did have some interesting evidence on this from the Law Commission itself, and I think you tend to think in a similar way. So, we'll consider that. 

In part 2 of the Bill—well , I suppose, really, do you think part 2 of the Bill is really necessary? Do you think the current rules set out in the 1978 Interpretation Act worked perfectly well? To what extent do we actually really need our own Welsh version of the Interpretation Act?

I'll start off here. I think it is because of the divergence of Welsh law and because, quite rightly, you as a legislature want to stamp your authority on the way law develops in Wales in the devolved areas. I think it's important to have that ability to interpret your law in the way you see fit, rather than rely on an Act that is getting a little long in the tooth now. It has been shown to have some drawbacks in it.

Again, the Law Society is mostly very supportive of the proposals that the Counsel General is putting forward as areas for interpretation. We feel that it could, in some areas, go a little further, but broadly I think it is important. I think it's also important in the Welsh context, because we are a bilingual country and it's important that we've something that also deals with interpretation in the light of the Welsh language. 

Do you think it will cause—. Sorry. Did you—?

No, you go.

We'll end up then with two sets of legislation: one applying up to 1 January 2020, which is the date set in Part 2 as the dividing line; and then we'll end up, obviously, with our own legislation. Do you not think that's a recipe for confusion?

I'm not sure I'd describe it as a recipe for confusion. It is a truism to say that it would be easier if everything was in one piece of legislation, but that would then require there to be retrospective application to definitions, and I think that might create some confusion in its own right. So, so long as we are clear about where the demarcation point is—and the suggestion is that the Welsh interpretation would apply from 1 January 2020, I think—then I think we can live with the difficulties that might occur.

In your submission, you referred to one or two areas of the rules that caused some concern to you. I wonder if you could perhaps just elucidate which of those rules you really have a problem with or you think there might be issues to comment on. Osian.

Thank you. That's a very helpful example, and I think those of us who practice in law remember the number of hearings that take place over whether a document has been served or whether it's been received, and then whether it's within limitation period as well. So, thank you for those comments on that part of your submission. Carwyn Jones.

What's the best approach, do you think, in terms of interpretation? Is it having an interpretation Act that contains a list of words and their definitions, or is it to have definitions on the face of the Bill?

I think, for ultimate ease of access, you'd have to say that having it on the face of the Bill is the preferable source. Certainly, it helps us as practitioners, but, for members of the public, who are perhaps not familiar with finding interpretation Acts, it's got to be easier for them to understand if the information is contained on the face of each of the Bills. Now, we also wondered whether or not that interpretation could actually be referred to in the code as opposed to necessarily on the face of each piece of legislation, but I think that, whichever way is pursued, it's better than the position we have at the present time.

Thank you. If we look at Schedule 1 of the Bill, do you think that there might be a problem here where, let's say, for example, a member of the public looks at a code, looks at a particular part of the code, and then they seek a definition of something that isn't in the code or in the legislation, that they will know, then, to look at any interpretation Act? Now, I suppose one way of getting around that would be to signpost them towards it, so 'land' is defined as being that in Schedule 1 or whatever of an interpretation Act, but that would need to be signposted. In terms of Schedule 1 more generally, are there any definitions in Schedule 1 that cause you any concern at this stage?

There aren't specifically definitions that are identified in there that are causing us huge concern. There are some issues that maybe we have not included. For example, there is a definition of county courts and various things of that nature, but there is no definition, from my own perspective, of a community council, and a community council is peculiar to Wales—it's certainly not emulated in England—and I thought that might have been in there. I know my colleague, Osian, has picked up on a couple of things that could usefully be added.

Okay, thank you for that. I move on to Mandy Jones.

Do you have any concerns about the timescales and how long it might take for the Bill to make an actual difference to the accessibility of Welsh law?

I think it's a matter of where you start from. It's entirely accepted that this is probably going to be a generational thing, to have the full impact, but one has to start somewhere; there might be an argument that it would have been useful to start earlier than this. But I think it's important to give some priority to this now, if we are serious about making accessibility of law better for everyone within Wales, and to start now. Clearly, the examples from other jurisdictions, like in Scotland and in New Zealand, are that it's been very effective to codify the laws that apply there. So, yes, it's clearly going to take some time to get the full benefit of this, but hopefully we can get at least some early benefit out of the exercise.

With Brexit and everything going on, do you think now is the right time to prioritise this, or do you think our priority should be for Brexit, social care, housing and everything?

Well, I'm sure that the programme of legislation and issues will come along that will always have a degree of priority at a particular point in time, but I think the longer you leave an exercise like this, the less likely it is that it will ever be done effectively. So, in my opinion, it should be given some degree of priority, and, in that regard, I think it's important that—in Part 1 there, the duty for succeeding administrations to put the programme together is important in that regard. 

Right. And how would you assess whether the Bill, once it's been enacted, has been a success?

Yes, that's quite interesting, and I have looked at some of the evidence that's been provided by other colleagues. Again, I use examples from my public sector background, and scrutiny is always healthy in my opinion, and therefore I think there is a role for the Assembly to take in scrutinising and ensuring that this is delivered. I wonder if I might just—

Please, yes. 

In relation to that, one concern that we do have is in relation to the duty, because the way Part 1 is drafted at the present time, the duty is to produce a programme that includes 'proposed activities' that are intended to do what's in the section here. And we wonder whether that is strong enough, or whether, in fact, the word 'proposed' should perhaps be removed to ensure that some activity is carried out, not just that you put a plan forward but nothing ever gets done as a result. And, again, it's a point of detail, but subsection 3 of section 2 talks about what the programme 'must include', and subsection 4 talks about what the programme 'may also include', and the first item there is activities:

'(a) that are intended to promote awareness and understanding of Welsh law'.

We would respectfully suggest that perhaps that ought to be part of the duty as opposed to a mere discretion.

You just said about the word 'proposed'. Would you rather put the word 'prioritised' instead?

I'm not sure a word is required there. I wonder whether just leaving out 'proposed' would be—.

Blanking that, yes. Okay, my last one is: how would you review the operation of the Act? What would you say—? Should they report after five years or something to the Assembly, to see how it's going?

Five years is quite a long time. And, again, just referring back to, maybe, the Assembly's involvement, the programme is to be—. A copy of the programme will be laid before you within six months of the appointment of the First Minister—the National Assembly—but that could mean that you will only get delivery of one programme in a four or five-year period of time. It seems to us that perhaps a little bit of scrutiny on a more regular basis than that might not be a bad idea.

A timeline for that?

Annually, two-yearly, something like that.

Okay. Thank you.

Biennially. Okay, thank you. Dai Lloyd. 

Okay, well thank you very much for that. Thank you for your written evidence and for your submissions today, and the responses to the questions. You will get a transcript to check through in due course. If there are any points that you consider afterwards that we may not have asked about, but you feel you wanted to add, then we're obviously welcome to receive any further submissions. Thank you very much.

Thank you.

We now move on to our next evidence session, Citizens Advice Cymru and Swansea Law Clinic.

Good afternoon. I'd just like to welcome Rob Sherrington from Citizens Advice Cymru, Callum Higgins from Citizens Advice Cymru, Professor Richard Owen from Swansea Law Clinic, Tahmid Miah from Swansea Law Clinic. Firstly, thank you for attending, for considering the legislation—the draft legislation—and preparing for this particular scrutiny session. Thank you again to Swansea Law Clinic for the submission that you put in in writing today.

Perhaps if I could just start with a few opening questions—. Obviously we're aware of the very good work that both organisations have been doing in recent years in an important and difficult environment. I'm just wondering what your views are on the aspect of accessibility of law, which features very much within the legislation and within the explanatory memorandum. How will this legislation actually contribute to accessibility? What are your concerns about the issue of accessibility? I'm happy to start with—

I believe that legislation that is accessible to the public, written in a clear and simple form, accompanied by an explanation of the provisions, could mean that many people financially struggling to seek legal advice could use that as an alternative.

The clinic's been going since 2017, and the demand for our services has been very great, it has to be said. We have people coming from as far afield as Cornwall, Plymouth, Ceredigion wanting our services. The main problem seems to be the affordability of legal services—the fact that the legal aid means test has been frozen since 2010. There are specific accessibility issues in the Welsh language, we feel, and increasingly people are having to do it by themselves—either wholly by themselves or partially by themselves. We're finding particularly in family law cases that they may wish to draft the petition by themselves and then think that they can afford a solicitor for the financial matters or the child contact matters. So, we think this Bill will help in terms of accessibility. The reason we think it will help is because increasingly a new audience for legislation exists, which is the general public. Legislation in the past tends to have been written for members of the legislature, for the Executive, civil servants and legal practitioners, whereas the public now are increasingly having to read legislation by themselves. So, having it all in one place means they will not require some of the legal research skills that are currently required in order to locate legislation.

Thank you. Rob.

Similarly, our services have increased, not only in the amount of people we're getting through the door but in the complexities of issues that we're getting through. When you look at the profile of our clients, they are twice as likely to lack basic digital skills and twice as likely not have access to the internet. So, as Richard was just saying there, people are doing it themselves, so in terms of how people go about finding them, they're finding that increasingly difficult. The majority of cases—61 per cent—are done through face-to-face contact, again because of these issues. So, we think it'll help, really; having everything in one place certainly will help, not only to help the citizen but also in terms of helping our advisers to give the best advice that they can.

Just to reiterate what Rob has said, there are three distinct groups, really. You've got the citizen themselves, and they struggle with interpreting the law and knowing where to find it, so it will benefit them having it all in one place. Advisers are strapped for time and resources, so knowing where to go and looking at one specific place for the law is very helpful. Similarly, legal professionals who might be involved in giving advice to citizens directly—it saves them time and makes it more efficient for them and clearer where the law is and how to interpret it.

Another reason we think the Bill is needed is that, even when you can get legal services, their accessibility can be a real problem, particularly in rural areas of Wales, where we have something of a demographic time bomb. We've got a lot of sole practitioners who are approaching retirement age with no succession planning. So, the worry is that that will go over the edge of a cliff and we will suddenly find ourselves with areas of Wales not being covered by legal professionals. Also, there is much more likelihood these days of accessing legal services through some digital means, and obviously mid Wales has some areas without broadband connectivity, so we worry about access to justice in that way as well.

I suppose that's quite significant, isn't it, the technological side? In the past, the only people who would have had access to Halsbury's Statutes and so on would have been lawyers, whereas now anyone can Google a piece of legislation, and I suppose that's significant. But in terms of accessibility per se, there's accessibility that benefits the administrators of law—lawyers and so on—. And you've mentioned within your written evidence—you focus quite a lot on the individual, the individual citizen and so on. Taking that broad sweep of all those aspects of the law, what more could the Welsh Assembly be doing? What would you like to see the Welsh Assembly doing in terms of increasing accessibility, improving accessibility and understanding the weaknesses in what is being done at the moment? What more could be done that would improve the issue of accessibility?

Well, in some respects, more of the same in the sense that the area of Welsh legislation that we most have to deal with in the clinic is housing law, and the Housing (Wales) Act 2014—its clarity and the way it’s written—is very helpful. So, that’s that clear language.

As I’ve said in the written submission, we are very keen on accessibility programmes being defined quite widely and for a public/legal education component to them as well, as well as looking at new forms of law making—the sort of more collaborative methods. There were plenty of examples across the world where the more collaborative, co-operative methods of legal drafting have been used, and we think that's something that could be considered under these accessibility programmes. That’s as well as computational law principles—where we have legislation available digitally, how can that be tailored in a way that someone can find out the legislation that applies to them and their particular problem. We see that as quite an important matter to address.

Okay. Did anyone else want to add, or—?

I’d just like to say that, as a student, when looking at legislation, I found it quite convoluted and confusing and very archaic. I think that an improvement in the legal profession for the future is to simplify and explain legislation in a clear way. If that were to occur, members of the public could—. It would be much more accessible and user-friendly for the public, and I think that would help accessibility.

There's another ex-student advisor here, Isabel Francis, and I think that—if you could nod or shake your head—that is quite a widely shared experience amongst the student body, isn't it, I guess?

Please, yes, Callum.

Chairman, there are some good examples of what can be done or what has been done in the past. Looking at the Social Services and Well-being (Wales) Act 2014, there were some really good, easy-read versions of what the legislation meant and the effect of that legislation on the citizen, which meant that if you didn't understand legislation, if you weren't a lawyer, you could grasp the basic concepts of that legislation by reading these versions, which were available free online on the Welsh Government website. So, more of that, I would say, so that people who aren't familiar with legislation and how it's constructed can get the concepts and what it means to them directly from a free, accessible source.

Thank you. Dai Lloyd.

Yes, well, legal definitions of codification often include incorporating common law principles and so on, which probably could not be done for this type of exercise, we feel. We would like everything grouped together—so, the primary legislation, the secondary legislation, and the codes of practice even. We have a slight concern, though, that the public will not know the significance of this hierarchy of legal norms. So, we're very keen to see some sort of user guide to sort of help people through this. We don't think it's just a question of lumping it all in one place, because there will have to be some elements of reform, we feel, to weed out overlapping and inconsistent provisions and so on. But if that happens, we don't think the public will be too concerned about these legal definitions of consolidation and codification; they'll be interested in the end result, which is, 'Can I find the law? Can I find the law easily?' I think this helps with that.

I'm not a computer specialist, but I understand that the computational law approaches law and legislation from a different standpoint. As lawyers, we tend to see legislation as text, and we're very text based in our approaches to law, whereas a computer scientist will see legislation as data. So, obviously, data can be coded in different ways to get different search results, and what is of particular concern to us is how the public will know what law is enforced—currently in force—rather than law that's enacted and not in force, and whether they can have different ways of searching databases so they can find the law that's currently in force today, and search in a different way and find all law that's enacted and get to some result. I have spoken to computer scientists and I understand that is possible in terms of coding—that is achievable. In terms of the resourcing and effort, I'm not so sure of that.

I'm not completely sure how much clearer I am as to what that actually meant. Is it a way of digitising law that's been consolidated and simplified so it's basically a way of using technology to contain consolidated and codified law?

Yes, that's right, and putting in different search requests and then getting different tailored responses. I think that's what particularly interests us. As I said, it would be a way of [correction: way of searching]—'I'm interested in housing law in Wales currently in force' or 'I'm interested in housing law in Wales' and you'd get a different search result.

And it's a very different thing to artificial intelligence, is it?

Well, my understanding of artificial intelligence is that's machine learning, isn't it? So, it gets more sophisticated the more data that it gets hold of, whereas this would be more about the coding stage, when you put it into the—[correction: when you input it into the digitised version]. When you digitise it, you'll put some way of signalling 'this is in force' or 'this is not in force'.

Unless anyone wants to add to the discussion around computational resources, I'll go on to Carwyn Jones.

Who may want to.

Not on the computers side. [Laughter.] Good afternoon, everybody. When you were talking about simplicity in drafting, my memory was taken back to the Offences Against the Person Act 1861, where, even if you had it in front of you, unless you were a lawyer, you wouldn't understand what it meant. The words 'malicious', 'grievous'—what do they mean? And what is 'GBH with intent' and so on? So, that law is particularly obtuse when we look at modern times.

What I wanted to ask is this: in terms of a code, there are two ways to approach a code, in my mind, or two main ways. One is to produce a code that is a true code, in the sense there are several codes that exist in other European countries, where, effectively, the code is the sole source of law. It's effectively one large Act—I suppose you could call it that. Or the approach could be to bring together all existing legislation into, as it were, a catalogue. So, if you're looking at what the law is in, for example, planning, then all the legislation would be listed there in the code itself. Which approach do you think is best in terms of accessibility?

Whoever wants to—.

Do you want me to go?

Yes, go on.

I don't think either is wrong; as you said, they're both valid ways of doing it. I'd say they both play to different audiences. So, I'd say the catalogue version probably suits lawyers more, in that it's split into Acts, and then you need to look at which Act applies to the situation you're looking at, whereas the one code would apply more to the citizen being able to understand, so it's all in one very contained space, whereas the catalogue is still something that professionals would handle more easily than the citizen.

So, would you be saying that there's a conflict, as it were, between the two systems in terms of which system suits which audience? Would you be saying, for example, that the catalogue-based approach, which is my wording, is more suited to practitioners, and the true code approach is more suited to members of the public?

I think it's a balancing act whichever way you do it, because you are always going to have these—I talked about them earlier—three different sets of people who we have in our organisation who would be using the law. Whichever way you do it, it's going to suit one group more than another. And if you are trying to make the law more accessible, I'd say focus on getting it to the citizen and letting lawyers then work with it as they would anyway, whereas if you focus the practice of codification on being for the lawyers, you'll lose out on making it more accessible to the citizen. So, focus on the citizen side of it, because lawyers will find a way of working with the law anyway. But it's always going to be a balancing act—I wouldn't say 'conflict'. It's just something that you have to balance when you go through this exercise and just keep in mind these different audiences.

Okay, thanks for that. The other question that's been brought before this committee, to which there's no easy answer at this stage, is: what do you do when the legislation doesn't fit into one code? So, for example, you have the Well-being of Future Generations (Wales) Act 2015, which, arguably, would fit into each and every code that the Assembly might have. Similarly, this legislation is not easy to identify in terms of where it might go in any particular code. So, I suppose there are a few approaches that could be taken. One approach might be for legislation to be produced, and a header as part of that legislation saying, 'This Act should be read as part of this code.' That's one approach that might be taken. Or an Act could appear in more than one code, so the well-being of future generations Act could be in each and every code, rather than just one. Do you have any views on what the best system would be in terms of trying to ensure that we don't get this leakage out of one particular code and end up in a situation where we have legislation that sort of sits between codes and then the whole thing becomes confusing, once again, both for practitioners and the public?

We're very concerned about the cross-cutting legislation, because legislation like the future generations Act, and, obviously, legislation that implements rights to do with children and the disabled and elderly people, which are important rights—. And, of course, there is some evidence from Dr Nason's work that there are fewer administrative law claims in Wales than in England per head of the population, whereas you would expect at least the same number. There's no real easy answer to this. I think we want people alerted to the fact that there is cross-cutting legislation, whether it's in user guides or explanatory memoranda or some other ways—that it's signalled to people, 'You may have to read certain overarching legislation in conjunction with this code.' The problem with repeating it in different codes is—I think one priority should be to try to make the code as short as you possibly can, and as far as is appropriate to make it short, because sometimes you need length for precision. But, again, in terms of making it user friendly for citizens, I think we need to make the codes as short as is appropriate but with reference to, in some way, shape or form, these overarching pieces of legislation.

Okay. Thank you.

Can I just ask you, just following on from that, then—? Of course, the codification and consolidation relate to statute law. Of course, we operate a system that involves statute and common law and common law principles in particular that are still very significant. The Counsel General has said that, obviously, he's not going to try and deal with the common law aspect. Is that an approach you agree with, or do you have any views on that?

I think that, for members of the public, it may be difficult to understand court judgments. And, of course, most court judgments are available on subscription services that practitioners have access to, usually, but I do believe that simplification and codification of common law judgments is useful, because, as you said, it is still part of the law in England and Wales, so members of the public can have access to all of the law, not just to legislation or the statute. Of course, again, I think it should be codified and simplified and not necessarily the whole judgment being stated.

Are you suggesting codification should incorporate, then, in some way, relevant judgments that—

Common law. Yes, I do.

Okay. Thanks for that. Does anyone else want to—? Yes, Callum.

There are pros and cons to doing it both ways. Our concern would be if you do codify, the common law principles then become fixed and that's beneficial in some cases and not in others. But we can see that it has its benefits if you do it, but it's a massive step just to codify the legislation in the first place, and that would be beneficial for citizens without the common law element being incorporated. So, we're supportive of the stance being taken currently.

I'd like to ask you a little bit, then, about Part 2 of the Bill. As you know, we have the Interpretation Act 1978. Of course, since then, we've had an enormous amount of Welsh legislation and, of course, an ongoing legislative programme, so increased divergence of law. In your view, do you think that this legislation is necessary or would you have preferred a situation where we just continued with the 1978 Act? I suppose what I'm really asking is whether you could give your views as to how important this particular legislation might be, bearing in mind the growth of the Welsh body of law.

Again, we think Part 2 would be helpful because of its reduction in size. Its potential to reduce the length of statutory instruments, we think, would help our clients, so, on that basis, we support it. And of course, the Interpretation Act 1978 is quite old and that predates devolution, so there are a number of terms that it would not cover because of its age.

Do you think there is scope for confusion over the fact that, of course, you'll have the 1978 Act continuing up until 1 January 2020 and then, of course, the Welsh legislation taking effect from then onwards? Do you think there is scope for confusion there, or do you think it follows sequentially clearly enough? 

Yes, there is scope for confusion, and I think probably on balance, the benefits outweigh the disadvantages. And, of course, one of the current disadvantages is that the Interpretation Act doesn't have terms in the Welsh language and there are accessibility issues that are specific to the Welsh language, and Part 2 will help with that. 

Are there any particular rules that cause you concern? Have you looked through the legislation? We've had some evidence already about concerns over, for example, the issue of service of documents and the implications of that. Do you have any particular concerns over any of the rules?

I'm aware that the profession is quite concerned about the rules to do with e-mail posting of documents. That is not something we experience from the type of work we do, but I know that that is quite a widespread concern amongst the profession.

As long as it's clear when this applies and when from, then it'll be beneficial to Welsh law and its progression in the future, and doing it at this point is much easier than leaving it until later when it's much more needed. So, yes, we'd support the Interpretation Act as it is in principle, but we can't see any significant issues that we're concerned about.

I have seen arguments that well-being should be included in the list in Schedule 1, which I don't think would be helpful, actually, because the social services and well-being Act and the well-being of future generations Act have two different audiences, so I see the potential for that actually causing confusion.

Well, I think there are some specific questions on Schedule 1 to the Bill and the defined terms. Carwyn Jones.

Thank you, Chair. Just going back ever so slightly to the issue about codifying the common law, if you codify common law, it isn't a common law anymore. The whole point about it is that it's a precedent-based system, and it's equally as effective, because murder, of course, is a common law offence, it doesn't exist in statute, and if you start codifying common law, you're going to start codifying equity as well while you're at it, which I don't think is a job that the Government would be particularly keen to carry on at this stage.

On the issue of definitions, an interpretation Act, of course, is one way of dealing with it, as you've already mentioned. An interpretation Act can't be exhaustive. It can't possibly cover every single imaginable term, I wouldn't have thought, that could appear in statute. So, what is the best approach? Is it an interpretation Act that acts as the font of definitions of the more widely used words, or to continue with a system where definitions are included in the Act and the Bill itself? So, for example, let's take the word 'land'. You could, I suppose, put 'land' into an interpretation Act and it would be the same in any legislation. Do you put it there or do you put it in a piece of legislation that deals with land? So, really, I suppose, what do you think the best approach is—is it an encyclopaedia of terms that sits over here, or is it defining each and every term on the face of the Bill in the Bill itself?

I think if we go for the second option that you've given there you are making it more accessible for those infrequent users. They'll have a list of everything that's in front—what x means, what y means, what z means—and that'll make things a lot easier from their point of view than having to cross-reference an encyclopaedia. That said, I can see the arguments for both, but I think in terms of—if you're looking at the citizen's point of view, we'd go with the second option there.

As law is digitised, there would be potential, I'd have thought, as you hover over a term for the definition to come up. That's obviously only available for digitised versions of legislation. Again, if it's not included in the Act, then obviously that shortens the Act, so we would see advantages with that, as making it as appropriately short as you possibly can.

Mandy Jones.

Do you have any concerns about the timescales and how long it might take for the Bill to make an actual difference to the accessibility of Welsh law?

Of course, the Law Commission of Wales and England has been going over 50 years and is still embarking on consolidation and codification processes, so by its very nature it is a long-term task, and it could well be a generational task. Personally, I would like to see some sort of end date, or target end date, even if it were 25 years hence, which gives us some ability to judge the success of the legislation.

Thank you. And with Brexit and everything that's happening now, do you believe that now is the right time to prioritise and put resources into processing this Bill? Or should those resources go basically to Brexit, social care, housing and everything like that?

I think we're seeing growing demand in our advice services, and with that we're seeing more complex issues, and with those growing complexities it's making it harder for our advisers to give good and accessible advice. So the quicker that gets fixed, or at least makes it easier, the better, from our point of view. So, in terms of 'If not now, when?', I'd say that people need it as soon as possible, and we'd welcome it as soon as is possible.

In terms of Welsh law, it's relatively young. The Assembly is a young institution. Starting now makes it much easier to consolidate Acts rather than leaving it to when you've got more legislation to be consolidating and codifying in the future. So, you have to start somewhere. The earlier you do it is probably the easiest and most efficient point to do it, so we'd say this would increase the accessibility of law quickly for our clients, and it would be easier at this point to do it rather than waiting for the future.

Thank you, and—

Could I just add something? I've interviewed clients as a student adviser at the law clinic, and I've witnessed clients who are financially struggling yet not eligible for legal aid because of the high threshold, and I think one of the clients actually said that they came to the clinic because we're a pro bono service, and even organisations that are less expensive than going to a solicitor's practice that provide legal solutions are limited in resources and can only do so much with a client. They may not be able to be consistent throughout the whole case of the client. That's why I think a database or a resource that members of the public can access, which is easy to understand, which codifies the statute in a simple and clear form, would greatly help because then people could carry out their own legal research and discover their legal rights without having to spend money. 

Also, I think it is addressing a societal problem because access to law is an issue that affects society, and there is reason to believe that there are certain rights that are not being accessed in the way that they could be. And I don't see Brexit necessarily as being something in opposition to this process, because, as laws are repatriated from the European Union, they can be incorporated into the codes.  

Yes, all those laws coming back. How would you assess whether the Bill, once it's enacted, has been a success? 

From our point of view, we'd look to our advisers on the ground, and if they're more confident and prepared to give the advice to our clients, essentially, and how easy they find it to give that advice, I guess. 

And, on the Bill, if you included a duty for Welsh Ministers to review the operation of the Act, what time span would you put over that? Would you give it, say, five years to lay the report of its findings before the Assembly, or would you shorten that time, or lengthen it? 

I think shorten, because such a significant Bill I think would need a review quite soon after. 

It's a very innovative Bill as well. There are very few international precedents, with New Zealand possibly being the best example, but that's what makes it exciting. And it also means that we support not defining key terms such as accessibility because these things need to be worked out as they go along, though, because it is so innovative, frequent checks will be beneficial, I feel. 

We'd agree that setting one review point wouldn't be very helpful. It's a moveable feast, so looking at it frequently over the next few years to see how it develops, what extra challenges we might face, I think is more beneficial than setting a single point when you want to review it. 

Thank you so much. 

Okay. Dai Lloyd. 

Just to add to that, we did an English by default report, and the reason Welsh speakers gave spontaneously to not using Welsh on certain things was the idea that it wasn't clearly accessible. By having this two-pronged approach and doing it equally, we think that it will make everything a lot easier to use Welsh as the first language in law.    

I agree with what's been said. As a university law clinic, our concern is that people who want to use Welsh through the legal process, and so on, have difficulty finding advisers, legal practitioners who also speak the Welsh language. So, we have some concerns about the solicitors qualification examination, which is due to come in in 2021. We'd like to see that being accessible in the Welsh language as well. 

Okay. Did you have any more questions? No.

Well, I think that brings us to the end of the questions. It's been extremely helpful, both in terms of your written submissions and your answers today. You will receive a transcript of the evidence, to check through that. If there are any points you think we haven't covered you'd like to write in on, then we're happy to receive any communications in that respect. I have only to thank you for giving up your time to attend this committee today; I hope you found it useful. I know we found it useful in terms of the scrutiny and preparation work that needs to take place as legislation passes through its very stages in this place.

So, we will adjourn now for five minutes. Thank you very much. 

Okay, we now move on to item 4, instruments that raise no reporting issues under Standing Order 21.2 or 21.3. Paper 3, statutory instruments with clear reports: the Smoke Control Areas (Exempted Classes of Fireplace) (Wales) Order 2019, and this Order is made pursuant to section 21(5) of the Clean Air Act 1993 and comes into force on 6 February 2019, and the Order revokes and replaces with amendments the Smoke Control Areas (Exempted Classes of Fireplace) (Wales) Order 2017. Section 20 of the Act places a general prohibition on the emission of smoke in smoke control areas, and, under section 21(5) of the Act, the Welsh Ministers may by Order exempt in relation to Wales specified classes of fireplace from the provisions of section 20 if they are satisfied that such fireplaces can be used for burning fuel other than authorised fuels without producing any smoke or a substantial quantity of smoke. Are there any comments on that?

No, fine. 

No, so we note that. 

We move on to item 4.2, the Food for Specific Groups (Information and Compositional Requirements) (Amendment) (Wales) Regulations 2019. These are regulations that make provision to enforce in Wales Commission delegated regulation (EU) 2016/128 supplementing regulations of the European Parliament and of the Council as regards specific information and compositional requirements for food for special medical purposes. Any comments on that? 

Okay. We move on, then, to item 5, instruments that raise issues to be reported to the Assembly under Standing Order 21.2 or 21.3. We're on to, again, the Smoke Control Areas (Authorised Fuels) (Wales) Regulations 2019. And I understand there has been identified there a discrepancy between the English and Welsh language versions. Any comments?

Yes, there is a small inconsistency between the English and the Welsh texts, set out on pack page 27—a very minor error, but we've yet to have a response from the Welsh Government.

So, it has been raised with the Welsh Government, and we will have a response to that in due course. Any other comments?

No.

In which case, on to item 6, instruments that raise no reporting issues under Standing Order 21.2 or 21.3, but have implications as a result of the UK exiting the European Union. And we have item 6.1, the Agricultural Holdings (Units of Production) (Wales) Order 2019. This is an Order that prescribes units of production for the assessment of the productive capacity of land situated in Wales, and sets out the amount that is to be regarded as the net annual income from each such unit. Any comments on that?

Only to note that 'eligible hectare' is defined by reference to an EU regulation and that EU regulation will form part of retained EU law under the European Union (Withdrawal) Act 2018. In other words, the EU regulation will be frozen on exit and form part of domestic law.

Okay. Any comments? Anything to be noted on that? 

Noted.

No.

Then we move on to item 7.1, the Environmental Assessment of Plans and Programmes and the Environmental Impact Assessment (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019. And these are regulations that make amendments to legislation relevant to both the environmental assessment of plans and programmes and to the environmental impact assessment in the matters of town and country planning and agriculture. Any comments or observations?

On to item 7.2, the Exotic Diseases in Animals (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019—these are regulations that make amendments to subordinate legislation that apply in relation to Wales in the field of control and prevention of exotic diseases in animals. Any comments or observations? No.

Item 7.3, the Zoonotic Disease Eradication and Control (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019—this instrument makes amendments to the Zoonoses (Monitoring) (Wales) Regulations 2007 and the Tuberculosis (Wales) Order 2010. These amendments are to ensure the statute book remains operable following the UK's exit from the EU and will address deficiencies in domestic legislation arising from EU exit. Any observations or comments?

On to item 7.4, the Nutrition (Miscellaneous Amendments) (Wales) (EU Exit) Regulations 2019, which make amendments to secondary legislation for Wales in the field of nutrition—any comments or observations? Okay.

Then we move on to item 8, written statements under Standing Order 30C—the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019, and you have a statement, a commentary. And these are regulations that have effect on the transfer of power to the Secretary of State. Comments?

Yes, the commentary in the draft report on pack pages 85 and 86 raises two questions about these UK Government regulations. Firstly, the Welsh Government's statement says there are functions relating to access to genetic resources that are not practically possible for the Welsh Ministers to exercise by themselves. There's no explanation as to why that is the case. Secondly, the regulations give functions to the Secretary of State, and this raises the question of whether this will impact upon the Assembly's legislative competence in future should the Assembly want to modify or change those functions in future. The draft report invites the Welsh Government to clarify both of those points.

Okay. Noted.

Noted.

On to item 8.2, the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019—again, you have a statement and a commentary. Are there any comments or observations? No.

8.3, the Nutrition (Amendment etc) (EU Exit) Regulations 2019—again, you have a statement and a commentary. You may wish to note that the written statement refers to regulations that were laid before the UK Parliament on 16 January 2019. The regulations were subsequently withdrawn and a new version of the regulations were laid on 17 January. Now, there is some comment on this. 

Yes, there are three points, again in the draft report, which starts on pack page 96. As you said, the Welsh Government—. These regulations were laid by the UK Government before Parliament on 16 January. They were then withdrawn and relaid on 17 January, but the Welsh Government statement refers to the original regulations laid on 16 January. Some minor changes were made to the regulations before they were relaid and it just raises the question of whether the Welsh Government became aware of the regulations being withdrawn and the changes that were made to them.

Can I propose that we formally write as a committee to seek clarification on those areas? And two other points.

Secondly, again, the same issue as mentioned earlier, about giving functions to the Secretary of State—again, might this affect the Assembly's legislative competence? And, thirdly, we note the UK Government allowed only 11 days for consultation on these regulations. Again, that raises a question of how did consultation work in relation to Wales with these regulations, and in fact, more broadly, how does consultation work in Wales with regard to the 80 or so sets of regulations that are being made by the UK Government in devolved areas under the European Union (Withdrawal) Act 2018. Are people in Wales getting the same opportunity to respond to consultation as people are getting in England?

We can incorporate those three points into the one letter if everyone's happy with that, unless there are any other—

Could I just—? A point of information, really. When exactly was the 11-day consultation? Because this is early January—the 11-day consultation wasn't over Christmas or something like that, which I've known in planning circles in Swansea, but doubtless not in European circles. 

I don't have the consultation period in front of me. I can find out.

Fine. It's just an interesting point. 

We'll perhaps just e-mail a note around about it, just for clarification.

Okay. Thank you.

We're now onto item 9 and a motion in accordance with Standing Order 17.42(vi). I invite the committee to resolve to exclude the public from the remainder of this meeting. Is that moved and agreed?

Agreed.

Okay, we'll now move into private session.